Q: Is the relevant time to determine when a subsequent purchaser has notice the time of the sale or the time she records?

A: The time of sale. You examine all three kinds of notice as of the time of closing. Information gained subsequently is not relevant. Otherwise, any earlier purchaser who recorded first would win, which is not true in a notice jurisdiction. Moreover, you can be a BFP without recording at all.

Q: What do you do if both purchasers are BFPs?

A: Generally speaking, this cannot happen. BFP means without notice of an earlier transaction. That means the first purchaser is never a BFP because there is no earlier transaction. The issue in cases where notice matters is whether or not the second purchaser is a BFP. To look at the issue another way, keep in mind that the first purchaser will always prevail unless the second purchaser meets the requirements of the relevant recording act. So in order for the second purchaser to prevail in a notice or race-notice jurisdiction, he will have to show that he is a BFP and the first purchaser will have to try to show that the second purchaser had notice.

EasementsQ: In terms of defining the scope of an easement, what is the relationship between the parties' intent and objective evidence of their intent and the black letter tests for the scope of an easement ?

A: The three black letter tests are each formulations the states have used to get at the question of whether the challenged use of the easement is within the parties’ intent. Thus, discussions relating to evidence of the parties’ intent is probably relevant when applying any of the three tests although each test places the focus of the analysis a little bit differently from the others.

“Use must be reasonable considering the terms of the grant” suggests that you begin with the language of the grant, which is usually seen as the best evidence of intent.

“Evolutionary not revolutionary” focuses on the extent and nature of the change in use, but whether a change is revolutionary will turn in part on what the parties understood when they entered the agreement.

“The burden must not be significantly greater than that contemplated by parties” suggests comparing the burdens on the servient estate from the challenged use to the burdens intended by the parties.

Q: You mentioned in class [in 2003] that the cases on easements-by-estoppel illustrate the tension that exists between the desire to have a clear set of rules and focusing on wrong-doers and holding them to their word. Is this similar to the tension between the desire to have a clear set of rules and allowing people freedom to contract? How is this tension reflected elsewhere in the course?

A: Both are examples of the common tension between certainty and flexibility. Allowing easements-by-estoppel increases uncertainty because it is very difficult for either landowner to know for sure when the easement has come into being and because subsequent purchasers of either parcel will have trouble determining whether the easement exists unless the dominant owner has litigated the case and recorded the judgment. However, allowing these easements also allows a court to hold the owner of the servient tenement responsible for acting in a way that caused detrimental reliance, arguably achieving justice although sacrificing certainty.

A similar trade-off exists in the vast majority of states that choose to incorporate notice into their recording acts. Although a race statute maximizes the certainty in the system, it allows knowing wrongdoers (those with actual notice) to have priority over innocent parties. Race statutes also disadvantage unsophisticated homeowners, who may not know they need to record but will be protected by the inquiry notice rules in other jurisdictions.

Another example is the choice about how strictly to enforce variance standards. Obviously, a municipality would maximize certainty by allowing no exceptions to its enacted zoning rules. The more you try to achieve justice in individual cases by allowing variances, the less certain the system becomes. However, a strict interpretation of variance rules may result in needless adherence to insignificant rules (see Aronson).

Q: If a parcel is landlocked by three parcels, how do you decide where to place the easement by necessity?

A: An easement by necessity only can arise when a landlocked portion of a larger parcel is split off to become a separate lot. Most frequently, when the split occurs, the result is just two parcels, the landlocked parcel and the remaining piece with outside access. In that case, the easement by necessity is placed over the remaining piece of the original lot, even though other parcels typically adjoin the landlocked parcel as well. This is true even when the easiest route out of the landlocked parcel is not across the remaining piece. The idea seems to be that, at the time of the split, the owner of the remaining piece should have understood that the landlocked parcel would need a way out.

In a few instances, the landlocked parcel is created by a subdivision of the original piece of land into three or more lots and there are plausible access routes across two or more of the remaining pieces. In those cases, you’d have to argue about the best way to place the easement. If I were one of the lawyers, I might suggest that the court choose the access route that caused the least harm to the servient parcel and that the owners of the other remaining parcels contribute land or money to the servient tenement owner to make up for that owner taking on the burden of the easement.

Promissory ServitudesQ: How do you distinguish easements from promissory servitudes?

A: Easements give you a right to use land owned by someone else. Promissory servitudes are rights others have to enforce promises you make to do something or refrain from doing something on your own land. The place where the line can be fuzzy is regarding negative easements, which give the dominant tenement holder a clear passage for sun, air or view to cross to him over the servient tenement. Generally speaking, if the burdened landholder has agreed to put nothing in the way, that creates a negative easement. If the burdened landholder agrees to keep one specific thing out of the way (e.g., trim tree; not build third story on house), then it will be a promissory servitude.

Q: Can you explain the different approaches to the touch and concern requirement?

A: These approaches are best understood in the context of their historical evolution. Here is an overview I prepared for an earlier class:

(1) Common Law Touch and Concern: This test arose out of an early English case which allowed the burden of a covenant to build a wall to run “where [it] touches or concerns the land.” As is often true, the (probably casual) use of this phrase spawned a rigid legal test. Subsequent common law courts used up barrels of ink trying to determine what kinds of agreements “touched” or “concerned” which land. Although no consensus existed in American courts, most of them conformed to a few general rules:

Covenants to pay money (other than rent) did not touch and concern land.

Covenants not to do a particular activity on a particular parcel touched and concerned the burdened parcel. Mutual covenants not to do a particular activity touched and concerned both the burdened and the benefited parcels.

Covenants to do affirmative acts were disfavored.

(2) Bigelow-Clark Test (Neponsit): In the 1930’s, many courts and commentators tried to replace old formal tests with rules that focused on the real interests at stake. This movement led to the U.C.C., among other things. In this case, Bigelow and Clark suggested replacing formal “touch” and “concern” requirements with a test that focused on whether the landowners were harmed or hurt in their status as landowners. That is, a covenant requiring you to give money to the Red Cross might harm you personally, but doesn’t really affect the value of your landholding. By contrast, a covenant to pay money to pay for improvements to common areas of a homeowner’s association benefits the value of the landholding. Neponsit appears to adopt this approach.

(3) Restatement (3d) Reasonableness Tests: The Third Restatement suggests replacing the requirement with a simple reasonableness test: is it reasonable to bind the owner of this land to this type of agreement? It lists some specific criteria for courts to consider when making reasonableness determinations. This approach puts a lot of power in the hands of the courts and has all the advantages and disadvantages of flexible systems.

For example, in cherry tree hypothetical, you would ask whether it is reasonable to burden landowners with a duty to trim plants to preserve the sunlight and views of a neighbor. Because this kind of agreement is quite valuable to the dominant estate, does not place huge burdens on the servient owner (at least in the abstract), and is fairly common (so it should not be a total shock to the servient owner), I suspect a court would view it as reasonable. The Restatement provides more specifics as to what it means by reasonableness [for 2007 can look to NJ version in Davidson instead.].

(4) Modern Homeowners’ Associations and Touch and Concern Issues: Today, as far as I know, all states have statutes like the one at issue in Nahrstedt. Under these statutes, if a homeowner’s association files and records the proper forms and the declaration with the state, any covenants run with the land “unless reasonable” or “where reasonable.” This system eliminates privity and touch and concern requirements and intent and notice are taken care of by the recorded declaration. Thus, the test in Nahrstedt and the other approaches we discussed at the same time are examples of ways for state courts to determine which covenants are enforceable under these statutes. Note that many states, like Nahrstedt, distinguish between provisions filed in declarations and those passed subsequently as by-laws.

(D) Review Problems Covered in Class:

Comments & Best Answers

(1) Review Problems A & B (S116)

(a) Concerns re 2007 Arguments & Critiques Common to Both Problems

Use of Legal Authority: Make sure you tie your arguments to relevant legal authority where possible. Doing so is especially important where I have given you specific authority to use. I asked for you to analyze problem A using the Black letter Tests and Problem B using the cases. A lot of arguments in the critiques ignore these instructions.

Fact Qs & Uncertainty: As is typical of both Q2 problems and Q4 issues, there are missing facts that would help answer the question. You should discuss what those facts might be, ideally noting what facts would be particularly helpful for each side, and perhaps how likely those scenarios are. Many critiques assumed a particular set of facts was true and drew conclusions (“It is unlikely the satellite is very big, so it could not possibly increase the burden….”) Better practice is to make clear that the outcome depends on what the missing facts are.

One-Sidedness/Overstatement: A lot of the work in the critiques vastly overstated the strength of arguments for their favored side or refused to acknowledge that the disfavored side had any serious arguments at all. I will penalize exam answers that do these things.

(b) Review Problem A & Black letter TestsReasonable Considering the Terms of the Grant: Proposed use is literally within the grant, so it’s hard to argue that this test isn’t met. In practice, a court seeing a huge increase in the burden might stop the use anyway.

Evolution Not Revolution: This depends some on some factual points:

Was the cottage being used for toy manufacture beforehand? If so, move from a business in a small building to a business in a large building might seem like evolution.

Was there a change in the nature of the garbage? If more of the same, evolution. If banana peels  toxic plastics & paints, arguably revolution.

Burden Not Significantly Greater Than Contemplated by Parties: We discussed at length in class that you need to know what has changed about the process of going to the dump to determine how much the burden has increased. Seven times more quantity may mean seven times more trips on a much bigger truck or the same number of trips in the same truck with more stuff in the truck.

Estoppel Arguments: You weren’t asked a question that really gave rise to this issue, but a number of critiques discussed possible estoppel arguments. There is no basis for an easement by estoppel here, which arises when the holder of a license detrimentally relies on the owner’s knowing acquiescence in a particular use of the license. Here, since the elves had an easement, not a license, they had a non-revocable right to cross Santaacre within the scope of the easement. They can’t rely on the fact that that Santa did not stop them when he saw them building a factory, because he had n o right to stop them until they actually were using the easement for something arguably outside its scope.

A softer version of the estoppel claim that might have more weight is that they deliberately negotiated a broadly worded easement and relied on that broad language when they built the factory. A court might find that persuasive as long as there wasn’t evidence that the elves had deceived Santa as to their plans.

Student Answer: This answer was written in a ten-minute time limit; I’d obviously expect more if you have twenty minutes. Generally, the scope of an easement is limited to the use for which it was created. The easement agreement contemplated a certain level of usage which was based on the amount of garbage thrown out by cottages. A factory may have increased the scope of the easement since factories generally will have more disposable wastes than cottages and will require more usage of the path.

In addition we must consider if the factory was an evolution of the cottages or a revolutionary change from the original agreement. If the cottages were used for making toys then a factory may have been an evolution of technology and contemplated in the original agreement. However, the cottages may have been summer homes used 3 months out of the year and the factory was a revolutionary change and increase in the scope of the original agreement which would not be allowed.

(c) Review Problem B

(i) Comments on 2007 Arguments & Critiques:

(A) Fundamental Tension: Plain Language v. Purpose

Plain Language Arguments: Both cases start with language. Grant literally says “antenna.” Marcus Cable says look to plain meaning of language; probably for ordinary people, dish isn’t “antenna.” Leinecke technical argument: as a matter of engineering, dish in fact is a form of antenna. Technical argument like this accepted by Marcus Cable dissent, so could be allowed by another court, but is rejected by the majority.

Purpose Arguments: Under arguments focusing on purpose and/or evolution v. revolution, M has a strong argument that this is simply a technological update of the way to fulfill the purpose of achieving telephone reception. Both cases explicitly endorse this kind of updating of easements.

Possible Resolutions: A court could resolve the tension between these approaches in a number of ways:

(i) Conclude that purpose arguments only matter if language is ambiguous, and rule that “antenna” is not ambiguous.

(ii) Decide that where the purpose of the easement is also part of the explicit language of the grant, as it is here, it either (A) will allow changes that contradict the literal language that are consistent with the purpose, or (B) will read “antenna” to mean “antenna or what ever the current technological equivalent is.”

(iii) Entertain purpose arguments so long as nothing in the language of the grant suggests that the parties expressly rejected the proposed use.

(B) Burden Arguments: other courts suggest that a proposed use that dramatically increases the burden on the servient tenement will be rejected. Here, it is at least possible that the dish M wants to use will interfere with a view or damage the barn or require lots of service on D’s land. Whether the resulting burdens would be too much is a fact question not fully resolvable from the facts, although many of you felt quite certain that there was no increase in the burden and many others were equally certain that the burden was enormous.

(C) Problematic Arguments

The Parties Did Not Contemplate a Satellite Dish/D Would Not Have Allowed a Satellite Dish: Satellite dishes didn’t exist in 1962 (satellites barely existed in 1962). The cases say that the fact that the parties didn’t think about non-existent technology does not preclude holding that technology within the scope of the easement. Relatedly, the doctrine doesn’t seem to suggest that we try to guess what the parties would have done if they’d been informed by a psychic engineer that satellite dishes would appear in the late 1980s. Even the black letter test that talks about “contemplated by the parties focuses on the extent of the burden they intended in 1962, not on whether they contemplated the precise technology at issue.

“She’s Doing Him a Favor”/No Necessity to M: Some of you argued that D shouldn’t have to allow the proposed use because “she was doing him a favor” and so she should get to decide what he can do or because the proposed use wasn’t really necessary for him to get television reception. Important to remember that an easement is a property right that the dominant owner has in the land of the servient owner. The question in a scope case is “What are the exact parameters of that property right?” M’s interest is not the result of “a favor,” but of an explicit grant of a property interest (for which D might have received payment). She doesn’t get to change her mind. Similarly, he doesn’t have to show the proposed use is necessary if it is within the scope of the existing right that he owns.

Benefits to the Parties or the Public: If you want to argue that a court should adopt a particular interpretation of the easement because of benefits to the public or one of the parties, you need to explain why that benefit is relevant to the legal tests. Marcus Cable explicitly rejects benefits to the public as a consideration because it views the question as essentially one of interpreting a private contract. Chevy Chase says particular benefits to the servient tenement holders (access to the trail) are relevant to the question of increased burden.

Settlement Options: As I noted in the review session, question does not call for a discussion of settlement options, so unless you can make the existence of options relevant to the legal doctrine, leave them out of this kind of question.

(ii) Comments on Fall 1998 Exam Answers:Here, I looked for application of some of the several tests we studied for determining the scope of easements. The best answers discussed more than one test, made arguments for both sides, and used some policy to try to resolve the issue. In addition, they speculated some about possible facts not presented by the problem that would make a difference here (see Assignments II and III) like the size of the dish. [As some of you noted, Liz was irrelevant to the problem; she was a holdover from an earlier version. Sorry!] The two model answers are both very strong.

A number of students focused on the wrong cases here. The agreement here is an easement, not a promissory servitude; D did not promise to do/not do something, but is allowing M (and successors) to use her land. Because D is complaining of a misuse M is making of her land (not his own), the misuse claim would sound in trespass, not nuisance. Some of you relied heavily on Brown and other cases that focused on using an easement to serve lots other than those specified in the easement. These cases are not the best to use because courts generally allow no deviations of that type, but do allow gradual changes in the use of the easement by the dominant tenement to meet its purposes.

STUDENT ANSWER #1: Since it was written — express easement. Generally, scope of express easement is limited to the use it was created for. Courts look at language of easement and surrounding circumstances to determine intent when question of scope of easements arise:

Is use reasonable considering terms of grant? This depends on language and circumstances. Language expressly states "antenna" so Deb would argue she only agreed to have the antenna on her property. The change should not be allowed. She shouts — It's revolutionary. However, M can contend that the language is explicit but that was in 1962 (is this even in color?) The reception has not gotten any better but the technology has. He can argue that this is merely an evolutionary change. The easement was to provide better reception; since the method then was antenna, they wrote antenna. However, this use has not changed. Wasn't it reasonably foreseeable in 1962 that he may need other means for reception in the future?

D would argue that the use, in a sense, has changed. Antenna: provides reception. Satellite dish: crystal clear plus HBO (not the same thing!!) (Check if termination clause: if other than antenna, the end?).

Burden, she will argue, is significantly greater than contemp. by her when she made the agreement. An antenna is smaller, less obvious than a big ol' satellite dish. Does it matter that she is on top of the plateau—add to burden? She will contend sat. dish is bigger and uglier and more obvious, so it reduces the appeal of her ranch house, etc. She will state that the phrase "owners of Cyracre" means she may have to do this (maybe just friendly agreement betw neighbors?) for next owners and she might have agreed to that if it was antenna, but not satellite dish. Mike, on the other hand, will state the dish will be on the barn so may not be a big deal. Is the barn empty?

Strongest argument is that it can be seen as evol. change. She should have foreseen it; could have entered a protective clause in easement (e.g., term if not antenna). Courts will promote specificity in easements if decide this. Fair? Should they contemplate everything? Not feasible at times. Can't imagine all possible tech. advances.

STUDENT ANSWER #2: Mike first off faces three potential problems. The payment of damage from overuse, an injunction preventing misuse; and finally a termination if the court considers TV a profit.

Mike will argue that the satellite is still an antenna in a broad sense because its purpose is to get TV reception just as an antenna. Secondly, he'll argue under Kuras that the change is evolutionary not revolutionary because both parties know that as time went on technology improved, and that the easement needed to adjust over time as technology did. As technology evolved so did his TV needs; and as such he needed to broaden the antenna concept in the express agreement to a satellite dish. For him his reception was not great and since the purpose of the easement was to effectuate his best reception, it would be only natural that as greater improvements in TV would come out, he would want to utilize them. There is also no evidence that the satellite dish would damage the barn, in the case of a mini-dish it might actually be smaller, but a less of a burden.

Why would she object? Most likely because she foresaw a problem with Mike's dish. It is unlikely that the dish was less of a burden, which it could be, and she could be some Luddite, but not likely. There is no evidence here that it is not a burden and many dishes are bigger than antenna and could cause damage to her roof (which it is unlikely that she would have intended). Since the agreement began in 1962 she would argue under Kuras that, as seen from that viewpoint, that a dish was a revolutionary change, and as such should not be allowed because she didn't want that on her land. Secondly, she will argue that perhaps the dish is revolutionary under modern times because it could be an eyesore and ruin the value of her barn, and that she would be able to terminate the misuse where TV is a profit because it is something useful (reception) gathered from her land and that the dish is a clear misuse.

Mike will say that from a policy perspective a court should be forward thinking allowing agreements to be flexible so over time they allow the purpose of the agreement to be satisfied. Debbie will argue that as a matter of policy courts should only do what was expressly intended in the agreement, especially where the purpose is still being satisfied by the antenna (reception crummy, but still reception), because over-reading the contract could force landowners into agreements they never intended or wanted, damaging their right to enjoy the land.

(2) Review Problem A (S141):This was part of Old Exam Question 3N, so you can find comments and best student answers on-line. Be warned that there are significant estates and future interests issues mixed into the original problem.

(3) Review Problem B (S142): Suggested Legal Analysis

Easement: The contract between Jefferson and Madison is almost certainly not an easement because it created a duty to trim the tree, not a duty to insure that Madison has light or view. Nothing in the contract prevents Washington from erecting any other structure that blocks sunlight (e.g., a seven-story build­ing).

Equitable Servitude:

Intent to bind: The agreement says it binds “successors,” so a court would likely find intent to bind here. There is a little bit of evidence that they did not intend to bind:

- the parties did not say “assigns”; legally “successors” means heirs not purchasers

- the contract does not clearly say that the tree will be trimmed more than once

This seems to me to be a pretty weak case. These are laypeople, not lawyers. A court would likely find the lack of technical language and the failure to record unpersuasive. Why would they use the language “successors” unless they intended to trim the tree more than once? Jefferson’s acts in his own interest later are quite weak evidence of the parties’ intent at the time they entered the agreement. In any event, if you make these arguments, you should acknowledge that they are not particularly strong.

Touch and Concern: For the burden to run, the agreement has to touch and concern Washington’s land. In addition, in some states, the burden will not run if the benefit is in gross, so you have to check Madison’s land as well. Under a Bigelow-Clark test, the agreement touches and concerns both properties. The servitude clearly increases the value of Madison’s property and decreases the value of Washington’s. Even under a traditional test, the agreement probably has enough physical connection to both properties, providing view and light to one; cutting plants on the other. However, as the readings made clear, the common law was reluctant to enforce affirmative covenants like trimming a tree. Most jurisdictions now allow; check state law.

Notice: Assuming the other elements are met, Washington will be bound if he had actual or constructive notice of the agreement at the time he purchased. He did not have actual notice. Madison showing him the agreement is not sufficient. Notice must be present at the time of purchase.

Washington doesn’t have constructive notice through the public records. However, the appearance of the tree arguably provided inquiry notice to Washington. To determine whether it does, you would have to research state law on inquiry notice and look more carefully at the factual circumstances, particu­larly custom in the area regarding tree trimming. If the tree does provide inquiry notice, George's inquiries of Jefferson are insufficient. Inquiry notice creates a duty to inquire of someone other than the seller. As the problem demonstrates, the seller has incentive to lie. In sum, there is a strong possibility (although not a certainty) that Washington would be held to the agreement as an equitable servitude.

Real Covenant: In addition to notice and touch and concern discussed above, you would need to discuss the two types of privity:

Horizontal Privity refers to a legal relationship between the two parties to the original agreement (Jefferson and Madison) in addition to the promise you are trying to enforce. There is no evi­dence of any legal agreement between Jefferson and Madison ex­cept the contract at issue. Thus, there would be no horizontal privity as far as you can tell. The new Restatement eliminates this requirement; so need to check to see if your state has done away with the requirement.
Vertical Privity is the relationship between the party to the original agreement (Jefferson) and the party involved in the current dispute (Washington). At common law, they needed to have the same estate. Here, as far as you know, they both have fee simple title, so there would be vertical privity.

(E) Other Review Problems: Comments & Best Answers

(1) Review Problem C (S116)

Comments: This was a scope of the easement problem like the one we had in class involving Santa Claus. Most people handled it quite well. Many students, however, tried to force an easement-by-necessity into the problem. This is very wrong. None of the requirements for easement by necessity are met:

1) One parcel split into two: no evidence of this

2) Leaving one parcel without access to the outside world: no evidence of this either. Nothing in the problem even vaguely suggests that the Bar-Z ranch cannot be reached except via the lake. As long as there are roads to the ranch, it isn't landlocked.

3) The necessity exists at the time the parcels are split. Even assuming that the parcels were once one unit, and even assuming that the lake is necessary to access the ranch, the earthquake occurred after the parcels were divided.

Think about what it would mean if you could get an easement-by-necessity to get to a lake just because you had no access. You could by up next-over-from-lake property and force your way in. Un-American!

Student Answer #1: This question involves the scope of the purchased easement under the circumstances of the earthquake, etc. Here the parties negotiated for the easement but limited its use to specific language "if that path is the closest access..."

First, what was the intention of the parties here? To only create a slight burden on the S4 ranch? If so, then maybe an increased use was not intended. Maybe it was intentionally ambiguous language so that any unforeseen event (such as the earthquake damage) would not be seen as a breach or violation of the easement.

The questions to consider besides intent of the parties are the reasonableness of the change in use, the increased or diminished burden on the S4 Ranch and if this use is a revolutionary change in use. These are fact and circum-stance specific issues.

Reasonableness: Is this increase in usage reasonable? How may guests used it before? If only a few and now a lot maybe it's unreasonable. But if there is no big change, (very big change) maybe it's not. Is the Bar Z fully booked or does the areas near the S4 get booked first? Maybe guests use those cabins more than those near the earthquake damage. This may affect usage of the S4 easement & may bear on the reasonableness of the new use.

Burden: Is there any significantly greater burden on the S4 now? Even if all 35 cabins use the new easement maybe there's no real use difference so no greater burden, If the burden is greater, maybe by noise or litter created by guests this could be a violation of the original agreement. However, the language says "if path is the closest access" it's OK, so this may allow use regardless since now there is no other path. This may go back to reasonableness.

Revolutionary Change: Are the guests now using the same mode of travel and frequency of use here? Probably so, so this would not be a revolutionary change. As long as no revolutionary changes in use are made, as well as no additional burden on the S 4 & the use is reasonable then all guests can probably use the S 4 easement.

Student Answer #2: An easement is a grant in land. Here, the easement was contracted for & in writing between the parties. This is an express easement. After the earthquake, guests of Bar-Z had no other way to the lake except across S-4. Easements are to be analyzed as contractual rights and there are 4 factors to be considered.

1st, what was the intent of the parties, Clearly S-4 will argue that the intended use was for only 12 cottages, not 35. Bar-Z will argue that the intent is specified in the writing as the closest way to reach the lake. Because of the earthquake damage, this path is now the closest access to the lake for all guests.

The next factor to be considered is the reasonableness of the easement. Obviously S-4 thought it was reasonable at the time it was contracted for. Looking at the broad language in the grant, it would seem reasonable to assume that the grant was not specifically limited to the 12 cabins on the east side. S-4 would have been extremely short-sighted to believe that the # of guests/or cottages would always remain at 12.

This also leads us into the third factor to consider and that is whether the changes (growth) have been "evolutionary" & not "revolutionary". S-4 may argue that due to the earthquake, the changes have been revolutionary because now there are 3 times as many guests stomping through their property. Bar-Z, however, can argue that this was a freak of nature and that the amount of people is not as great (i.e., not revolutionary) as if Bar-Z had built a high rise cabin that housed hundreds of people (for example) or started busing guests across S-4.

The final consideration is whether the burden is greater than that which was contemplated. Obviously, S-4 only contemplated 12 cottages of guests & now is faced with 35. If he had contemplated more people, he could have charged more for the rights, limited the number in the grant, had a termination date included, or specified that if the # in-creased, the title grant would terminate. Bar-Z, however, would again look to the wording of the grant & also to the fact that S-4 knew there were 35 cottages to be allowed to use the grant.

Obviously, Bar-Z does not want S-4 to attempt termination of the grant & wants his guests to be able to use the path with no hostility between him & his neighbor. I would guess that, because an earthquake changed the situation (no fault of Bar-Z) & the amount of people is not substantially greater, that Bar-Z's guest would be able to use the path. However, on the practical side, as Bar-Z's attorney I would advise weighing the costs of litigation between the two neighbors (including ill will) against possibly giving S-4 more $ for the inconvenience or else possibly buying a bus to take guests on main roads to get to the lake. (Sort of a Coase Theorem Approach)